CENTER FOR RESEARCH-ACTION ON RACE RELATIONS
TAYLOR V. CANADA (ATTORNEY GENERAL) -
DISCRIMINATORY JUDICIAL CONDUCT
AND THE CHARTER
Mark Carrié, LL.B
Prof. Joanne St. Lewis, LL.B
with the assistance of
Carolina Manganelli, LL.M.
TABLE OF CONTENTS
Summary of Facts 4
Appropriate and Just Remedy 8
Standard of Review 10
Remedies: A Comparative Analysis 13
Apology Letters 16
Mar. 30, 1989 The Honourable Beverley M. McLachlin takes office as a Justice of the Supreme Court of Canada.
Nov. 1993 Mr. Michael Taylor's Charter-protected rights are infringed when he is impermissibly excluded from attending as a trial as a member of the public by a Trial Judge who did not accept the fact that Mr. Taylor, a Black man, was wearing a kufi as an expression of his Muslim faith.
Mr. Michael Taylor subsequently seeks authorization from same Trial Judge to attend the trial as a member of the public; said authorization is refused by the Trial Judge.
Michael Taylor begins to seek a remedy for the breach of his Charter-protected rights from, inter alia, the Canadian Human Rights Commission, the Ontario Human Rights Commission and the Canadian Judicial Council. Both human rights commissions dismissed his complaint on the grounds of judicial immunity and non-application of human rights laws to the judiciary.
The Canadian Judicial Council initially refused to act upon the complaint. Only later, after several letters to the CJC from Mr. Taylors Counsel did they act upon the complaint. In addition the CJC formally made the exercise of its jurisdiction in respect of Mr. Taylors complaint conditional upon the decision of another tribunal seized with the merits of the Trial Decision (the Trial Decision of which Mr. Taylor was a third party).
Timeline: Jan. 22, 1999 to Feb. 19, 2001
Jan. 22, 1999 In seeking a satisfactory remedy for his Charter violation, Michael Taylor files a judicial review application from a decision of the Canadian Judicial Council, relating to his acknowledged November 1993 Charter-rights violations, to the Federal Court of Canada (Trial Division) in Michael Taylor v. A.G. Canada [T-97-99];
Jan. 7, 2000 The Right Honourable Beverley M. McLachlin, PC takes office as the Chairperson of the Canadian Judicial Council;
Mar. 6, 2000 Formal judgment of the Federal Court of Appeal delivered in Michael Taylor v. A.G. Canada, A-20-98, relating to events of November 1993 and the Canadian Human Rights Commission's jurisdiction to provide Michael Taylor with a remedy for the breach of his Charter rights;
May 3, 2000 The Canadian Judicial Council, through its Counsel, seeks to intervene in Michael Taylor v. A.G. Canada T-97-99, with full rights of participation and a right to appeal from any final decision in that proceeding (Docs. 30, 31, 32, Court File T-97-99);
May 4, 2000 Michael Taylor applies to the Supreme Court of Canada for permission to appeal the judgment of the Federal Court of Appeal in Michael Taylor v. A.G. Canada, A-20-98 (March 6, 2000) [SCC Docket No. 27889];
May 18, 2000 In T-97-99, a Federal Court Judge grants the Canadian Judicial Council its request for full rights of participation and right to appeal from any final decision in the court proceeding, Michael Taylor v. A.G. Canada T-97-99 (Doc. 33, T-97-99);
June 12, 2000 The Canadian Judicial Council files its written arguments in Michael Taylor v. A.G. Canada T-97-99 (Memorandum of Fact and Law, (Doc. 34 (1st entry), T-97-99);
June 19, 2000 All materials and documents filed by the parties in Michael Taylor v. A.G. Canada, SCC Docket No. 27889 submitted to Supreme Court Panel of 3 (three) judges including, inter alia, the Right Honourable Chief Justice Beverley M. McLachlin, PC (Chairperson of the Canadian Judicial Council);
Oct. 12, 2000 Michael Taylor's application for permission to appeal the Federal Court of Appeal Decision, SCC Docket No. 27889, is dismissed by the Supreme Court, per The Chief Justice Beverley M. McLachlin, P.C. (Chairperson of the Canadian Judicial Council), Iacobucci, and Major JJ;
Feb. 19, 2001 The formal judgment in SCC Docket No. 27889, dated Oct. 12, 2000 is made available to the public;
March 2001 In research at the Supreme Court of Canada archives, CRARR obtains all relevant public documents in the Supreme Court File, including those viewed by and the decision signed by the Chief Justice/Chairperson of the Canadian Judicial Council.
SUMMARY OF FACTS
Michael Taylor was a spectator at the criminal trial of Dudley Laws. Mr. Taylor is a Black male of the Muslim faith and a spiritual leader within the African-Canadian community. He covers his head with a headdress called a "kufi" as part of his religious belief and practice.
On November 15, 1993, Whealy J. of the Ontario Court, General Division was scheduled to preside over the trial of Mr. Laws. When the courtroom session began, Whealy J. noted that he saw some people wearing hats in the courtroom. He ordered that either the hats be removed or that the people wearing them leave. He also made the following assertions:
Male heads must be bare -- uncovering one's head as a particular mark of respect is a tradition honoured by well over 90% of the population of Canada.
Some head coverings are obvious and easily recognizable as signaling to the eye an adherent of a well-established and recognizable race, culture, national or religious community; one of those communities who [sic] is clearly within the purview of the Charter. I am unable to think of any such community who has adapted a headdress which lacks the dignity and uniformity that I have been speaking of. Even among those communities, headdress in court will only be permitted if it is an article of faith demanded by that well-established and recognizable religious community.
On November 22, 1993, the appellant, Mr. Taylor, attended Mr. Laws' trial. After he had been sitting in court for about five minutes, he was approached by a court officer and was told that Whealy J. did not permit persons to wear "hats" in his court. Mr. Taylor told the officer that he was a Muslim and that the headdress was part of his religious practice. The officer told him that there were no exceptions, and that he had to either remove his headdress or leave the court. Mr. Taylor left.
That same day, Whealy J. ruled on a motion brought by Mr. Laws' counsel, who sought an order directing that any person who wore a hat or other head covering for religious reasons could wear such a hat or head covering during Mr. Laws' trial.
In his ruling, Whealy J. held that "it cannot be doubted that a presiding judge not only has the authority but also the duty to oversee the demeanor, solemnity and dignity which must prevail in a superior court of law." He outlined suitable dress code criteria, one of which was that "male heads must be bare and that if females wear head cover, it must not interfere with other members of the public or be flamboyant."
On November 25, 1993, Mr. Taylor again attempted to enter Whealy J.'s courtroom, and was again denied entry by a court officer. Mr. Taylor asked Mr. Laws' counsel to bring a second application to permit him to attend Mr. Laws' trial. Mr. Laws' counsel agreed to do so. In support of the motion, Mr. Taylor swore an affidavit explaining the religious purpose of his head covering. Again, Whealy J. dismissed this application, and gave substantially the same reasons offered in his earlier ruling. At trial, Mr. Laws was eventually convicted of most of the offenses with which he was charged.
Mr. Taylor filed a complaint regarding Whealy J.'s conduct with the Ontario Human Rights Commission. The Ontario Human Rights Commission concluded that it could not investigate the complaint because it did not have jurisdiction to do so. It justified its conclusion by reason of the fact that the Ontario Human Rights Commission only has jurisdiction over provincial matters, and that Ontario Courts General Division judges are appointed by the federal government.
Mr. Taylor then complained of Whealy J.'s conduct to both the Canadian Judicial Council (the Council) and to the Canadian Human Rights Commission (the Commission).
On December 28, 1994, the Council advised Mr. Taylor that it would not take any action on his complaint, saying that "it is apparent that Mr. Justice Whealy took the steps he considered necessary to maintain order in his courtroom" and concluded that "his authority to make these rulings . . . involved legal rights that cannot be decided or reviewed by this Council." It advised him that Whealy J.'s rulings could only be challenged by way of appeal to the Ontario Court of Appeal, something that Mr. Laws, the accused from whose trial Mr. Taylor was excluded, was pursuing.
Mr. Taylor asked the Council to reconsider its refusal to take no action. The Council refused to do so, saying that "rulings made by judges in the independent discharge of their judicial function are best left with the appeal courts." The Council added, however, that "If the Court of Appeal should comment adversely about the conduct of
a judge, this Council could well consider whether the conduct was such as would engage the jurisdiction of the Council which is to determine whether a recommendation should be made that a judge should be removed from office."
At the Court of Appeal, one of the grounds of appeal raised by Mr. Laws was that Whealy J.'s order to exclude members of the public who wore head coverings "undermined the appearance of a fair trial." On September 9, 1998, the Ontario Court of Appeal released its decision in Mr. Laws' appeal, in which it quashed Mr. Laws' conviction and ordered a new trial.
In its reasons, the Ontario Court of Appeal did not "consider it necessary to form a concluded view" on whether the exclusion of members of the public who wore head coverings "is in itself sufficient to constitute reversible error," in light of its decision to accept Mr. Laws' appeal on other grounds. Still, the Court of Appeal did hold that Whealy J. erred in "the exercise of his discretion" when he distinguished "between a requirement of a particular faith and a chosen religious practice," since "[f]reedom of religion under the Charter surely extends beyond obligatory doctrine." The Court also held that Whealy J. erred "in suggesting that only certain communities are clearly within the purview of the Charter," adding that "[n]o individuals or religious communities enjoy any less Charter protection than the major and recognizable religions."
The Court concluded that "the trial judge erred in excluding certain members of the public from the courtroom," and that in so doing, he "may well have inadvertently created the impression of an insensitivity as to the rights of minority groups."
In light of the Court of Appeal's judgment and the Council's earlier statement that it could well consider whether Whealy J.'s conduct would engage the jurisdiction of the Council if the Court of Appeal commented adversely about the conduct of a judge, Mr. Taylor wrote to the Council shortly after the Ontario Court of Appeal's decision was released, and asked that the Council reconsider his complaint.
On November 5, 1998, the Council did so. It sought comments from Whealy J., who advised the Council that he "sincerely regretted if the impression was created that I am insensitive to the rights of minority groups," and "that is not the case and was never my intent."
On December 9, 1998, the Council wrote to Mr. Justice Whealy and expressed disapproval of the comments which Whealy J. made during Mr. Laws' trial. It did not, however, consider the conduct to be sufficiently serious to warrant any further action by the Council, such as recommending that Whealy J. be removed from office. The Council's decision was the subject of an application for judicial review by Mr. Taylor. Both the Federal Court of Canada and the Federal Court of Appeal upheld the Councils decision. Leave to appeal to the Supreme Court of Canada was denied on September 25, 2003.
Mr. Taylor's complaint to the Canadian Human Rights Commission was not successful either. The Commission concluded that article 41(1)(c) [as am. by S.C. 1995, c. 44, s. 49] of the Canadian Human Rights Act, prevented it from dealing with the applicant's complaint and that it lacked jurisdiction because Whealy J. benefited from the common law doctrine of absolute immunity for judges during the exercise of judicial functions.
Mr. Taylor sought judicial review of that decision at the Federal Court, Trial Division, which dismissed the application on the basis that Whealy J.'s ruling was made in his capacity as a judge and he was therefore protected by reason of judicial immunity from suit. Mr. Taylor then appealed that decision to this Federal Court of Appeal. Both the Federal Court Trial and Appeal Divisions upheld this conclusion.
APPROPRIATE AND JUST REMEDY
Due to its position in the hierarchy of standards, section 24 of the Canadian Charter of Rights and Freedoms is a central piece in the scheme of relations between the Charter and the other sources of rules governing public liability.
Section 24 of the Charter states:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
It is especially important to review what it means to obtain an appropriate and just remedy for a Charter violation. In two recent judgments, the Supreme Court seems to suggest that section 24(1) is the basis for a possible remedy over and above the pecuniary liability in the ordinary law. It is difficult to imagine language which could give a court a wider and less fettered discretion than section 24(1). It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or narrow this wide discretion.
Briefly, a "court of competent jurisdiction" is a tribunal that has jurisdiction over the person and the subject matter, and, in addition, has the authority to make the order sought. Indeed, Hogg has argued persuasively that the phrase "court of competent jurisdiction" in section 24(1) "does not limit the remedies which may be granted on a section 24(1) application." Following an interpretation proposed by Dale Gibson,Hogg argues that:
Section 24(1) deals separately with the questions of competent jurisdiction and remedy. After directing applicants to a court of competent jurisdiction, the section then empowers the court to grant "such remedy as the court considers appropriate and just in the circumstances." This structure invites the interpretation that section 24(1) is itself the source of the courts remedial power, and a court which is competent as to subject matter and parties has the power, conferred by section 24(1), to grant any remedy that the court considers appropriate and just in the circumstances.
Under this view, section 24(1) is itself "a sufficient source of a courts remedial power." Whether a court or tribunal enjoys the power to grant a remedy sought is, first and foremost, a matter of discerning the Parliament or the Legislature. Nevertheless, the language of section 24(1) gives a wide discretion to fashion remedies, and it cannot be reduced to some formula for application in all cases.
It is also important to recognize that section 24(1) empowers a court to be "appropriate and just" in the circumstances. The remedial flexibility which is provided for in section 24(1) may allow a court, in the right circumstances, to grant a remedy which either exceeds or falls short of a range of recommended remedies. This is, of course, essential when evaluating the adequacy of the remedy --- of the lack thereof.
But Charter violations may be effectively remedied by the Canadian Judicial Council in disciplinary matters of judges using the same or more flexibility employed by courts. This form of judicial independence was adopted in Canada at the time of Confederation in 1867. Since that time, there have been only five Petitions for removal of a superior court judge filed in Parliament, four in the 19th century, and one -- the Landreville case in 1966-67 -- which was terminated when the judge resigned. In none of these cases was there a parliamentary vote.
The 1971 amendments to the Judges Act created the Canadian Judicial Council, which was given statutory authority to investigate complaints against federally appointed judges. The Council consists of 39 Chief and Associate Chief Justices/Chief and Associate Chief Judges of courts whose members are appointed by the federal government. The Council has adopted by-laws, which govern the investigation of complaints.
The Taylor decisions seem to say that the court of competent jurisdiction for cases of judicial misconduct where a Charter violation has occurred is the Canadian Judicial Council rather than a court which would be restricted to asking for a declaration rather then a remedy as envisioned by section 24 of the Charter. The Canadian Judicial Council is the appropriate tribunal to administer that remedy for discriminatory conduct that rises to a Charter violation.
It should be noted that in the context of providing the Charter remedy the range of remedial measures commonly set out by human rights tribunals should be considered. This would include the provision of individual education programs, provision of specifically designed training programs for the broader court as a remedial measure and creating mechanisms which would enable dialogue between the court and the affected community.
STANDARD OF REVIEW
Judicial review of tribunals, such as judicial councils, are governed largely by either a correctness standard, patent unreasonableness, or a higher deference standard of "reasonableness simpliciter." The court has left some ambiguities in determining the proper standard of review. The decisions to date mainly rely on recent Supreme Court jurisprudence, such as that articulated by Mr. Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982, for guidance:
Since U.E.S., Local 298 v. Bibeault,  2 S.C.R. 1048, this court has determined that the statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question. This law has been dubbed the "pragmatic and functional" approach. This more nuanced approach in determining legislative intent is also reflected in the range of possible standards of review. Traditionally, the "correctness" standard and the "patent unreasonableness" standard were the only two approaches available to a reviewing court. But in Canada (Director of Investigation and Research) v. Southam Inc.  1 S.C.R. 748, a reasonableness simpliciter" standard was applied as the most accurate reflection of the competence intended to be conferred on the tribunal by the legislator. Indeed, the Court described the range of standards available as a "spectrum" with a "more exacting end" and a "more deferential end.
Interestingly, the Supreme Court applied three standards of review (correctness, patent unreasonableness, and reasonableness simpliciter) in Moreau-Bérubé v. New Brunswick (Judicial Council). Under each standard of review, the court in Moreau-Bérubé found that the Judicial Council was within its powers to recommend that Judge Moreau-Bérubé be removed from her office as judge for derogatory comments made against Aboriginal peoples. Four criteria are used for reviewing courts under the standard first enunciated in Pushpanathan:
i) the nature of the problem under review, and whether it constitutes a question of law, fact or mixed law and fact;
ii) words within the tribunals enabling statute, most importantly, whether a privative clause is present or absent;
iii) the purpose of the tribunals enabling statute, and whether that purpose lends itself to less or more deference; and,
iv) whether the tribunal has any particular expertise in reference to the question under review.
The Moreau-Bérubé Court reasoned that the New Brunswick Provincial Court Act had no privative clause, and did not contain language to suggest that decisions made by the Judicial Council are to be considered final and conclusive. In commenting on the purpose of enabling clause, the court stated:
There is a tension between judicial accountability and judicial independence It is necessary to devise systems that provide for accountability, yet at the same time are fair to the judiciary and do not curtail judges obligation to rule honestly and according to the law.
The court went on to say that there:
must be a degree of authority and finality in decisions made by the Council [ Accordingly] the objective of the Provincial Court Act and the composition of the Judicial Council itself suggest that decisions of the Council should be reviewed with a great deal of deference."
The court in Moreau-Bérubé also concluded that it would uphold the interpretation of the Council of a more rigorous standard of review.
As Justice Arbour stated:
In my view, it was within the power of the Council to draw its own conclusions, and, in light of the sweeping and generalized nature of Judge Moreau-Bérubés derogatory comments, it would be difficult to call the conclusion patently unreasonable [however][e]ven on a standard of reasonableness simpliciter, I would find no basis to interfere with the Council decision [to remove her from office].
In Taylor v. Canada (Attorney General), Justice Blanchard applied the "pragmatic and functional approach" to the improper conduct of Judge Whealy. The Court in Taylor found the judge in question had improperly excluded persons with headdresses from his courtroom in spite of the freedom of religion expressed by Mr. Taylor under the Charter. In addition, the court relied on the correctness standard and the reasonableness simpliciter standard and reasoned that, under a "pragmatic and functional" approach (the four-prong criteria announced in Pushpanathan):
The purpose of the statute is often indicated by the specialized nature of the legislative structure and dispute settlement mechanism and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualification of the members. Mr. Justice Bastarache, in Pushpanathan, supra, concluded that deference is warranted when a statute calls for a tribunal to exercise a specialized and expert function, to balance a complex series of competing demands and interests, to exercise a protective role regarding the public and plays a role in policy development. The learned judge further commented that where an administrative structure most closely resembles a model that calls for consideration of "polycentric issues," issues that involve a large number of interlocking and interacting interesting and considerations, Courts should exercise restraint.
Some believe, as a result, that the tension in the jurisprudence concerning the applicable standard of review in these cases of administrative tribunals points to expertise as the most important factor when settling on a standard of review. In Pezim v. British Columbia (Superintendent of Brokers), Iacobucci J. wrote that:
Even where the tribunals enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of specialized lower tribunal on matters squarely within its jurisdiction.
But this tells only part of the story. It would seem that a Charter violation should trump all the lesser standards of review and demand a correctness standard of review wherever judicial misconduct arises. Moreau-Bérubé clearly stands for the proposition that the Supreme Court of Canada has not opted in favor of one or the other in reviewing these cases concerning judicial misconduct.
The flexibility in determining the appropriate standard of judicial review shown to date reflects an important feature of equality embodied in the Canadian Judicial Councils Ethical Principles for Judges. According to these principles, judges should conduct themselves and the proceedings before them so as to ensure equality according to law. The first principle under "equality" is that judges should carry out their duties with "appropriate consideration for all persons (for example parties, witnesses, court personnel and judicial colleagues) without discrimination" (emphasis added). The duty of impartiality also specifies that the appearance of impartiality is to be assessed from the perspective of a reasonable, fair-minded and informed person. It follows that Charter violations point to a stricter standard of review, such as correctness, to ensure that the just and effective Charter remedy is found when discriminatory conduct by a judge is committed.
REMEDIES: A COMPARATIVE ANALYSIS
Each province within Canada offers some form of remedy against improper judicial conduct. It is vital to assess the similarities and differences amongst existing provincial courts to draw recommendations for just and effective remedies when Charter violations under section 15 are committed. From these carefully crafted provincial remedies, we may broaden the scope of remedies that should be available as remedies against discriminatory conduct by federal court judges. Inappropriate "harmless banter" may easily transform into discriminatory conduct worthy of commensurate sanction. As a result, reprimand and the rarely awarded removal have explicitly been excluded since they seem ill suited for providing a remedy for complainants where discriminatory conduct has been committed by a judge.
Currently, the Canadian Judicial Council merely permits two remedies for judicial misconduct: removal and an issuance of "an expression of disapproval."
Quebec offers a similarly limited form of sanction for discriminatory conduct by a judge that mirrors the present narrow philosophy of federal remedies. Recently, the Supreme Court of Canada ruled on the fact that the Quebec legislature had only foreseen two possible sanctions for misconduct by provincially appointed judges in Quebec:
The Comités mandate is thus to ensure compliance with the judicial ethics in order to preserve the integrity of the judiciary. Its role is remedial and relates to the judiciary rather than the judge affected by the sanction. In this light, as far as the recommendations of the Comité may make with respect to sanctions are concerned, the fact that there is only a power to reprimand and the lack of definitive power of removal become entirely comprehensible and clearly reflect the objectives underlying the Comités establishment: not to punish a part that stands out by conduct that is deemed unacceptable but rather to preserve the integrity of the whole.
Perhaps the most powerful remedy for a Charter violation would be to order remedial treatment or education of a federal judge for discriminatory conduct on the bench. At present, Manitoba, Saskatchewan, Ontario and Nova Scotia all specifically provide for such a remedy, however, this option is not offered by the Canadian Judicial Council. Remedial treatment and sensitivity training for judges seem to allow a judicial council ample opportunity to compel a just and effective remedy. This is consistent with section 15(2) of the Charter, which stipulates that concrete remedial actions may be ordered to resolve a section 15 Charter violation. This is particularly important for third parties whose complaints may often fall significantly short of seeking removal of a judge, an extremely rarely awarded remedy.
The more common provision used as a remedy by judicial councils for judicial misconduct is to take some form of corrective measures, as deemed appropriate in the circumstances of a case. This is more of a generalized power but it gives a judicial council the flexibility to fashion a range of remedies that would otherwise be outside the scope of the Canadian Judicial Councils powers. Currently, Alberta, Prince Edward Island, Nova Scotia, British Columbia, Ontario and New Brunswick are equipped with this authority. Other Provincial Court Acts implicitly recognize the power of judicial councils to use such flexibility in resolving a complaint.
Several provincial councils are also vested with the power to suspend judges for judicial misconduct. These provinces include Saskatchewan, Prince Edward Island, Nova Scotia, Manitoba, British Columbia, Ontario, Quebec, and Newfoundland.This remedy certainly has an effect that may have negative financial repercussions on a judge; this demonstrates some tangible accountability for a potential Charter violation.
Another interesting remedy that has been used by some provincial judicial councils has been to order a judge to apologize to the complainant for some form of judicial misconduct after an inquiry. This is beneficial because it can potentially be used as a remedy to correct a wrong (i.e. discriminatory conduct) done upon not just the aggrieved person but that persons community. Currently, complainants in Ontario, Saskatchewan and Manitoba may utilize this provincial remedy for discriminatory conduct by a judge.
As an additional remedy, some provincial councils also empower their respective judicial councils with the power to "warn" a judge that has been found responsible of judicial misconduct.Again, empowering judicial councils with a range of remedies makes the purpose of finding an effective and just remedy more attainable in response to discriminatory conduct that rises to a section 15 Charter violation.
These remedies constitute a reasonable starting point to consider tougher measures for complainants that seek federal remedies. Each remedy has an additional advantage of providing the Canadian Judicial Council with added flexibility to craft different remedies for discriminatory conduct under the Charter. Accordingly, the scope of these judicial remedies, which are already available under Provincial Court Acts, must be reflected in an amended statute for the Canadian Judicial Council.
The instant case demonstrates that an inadequate understanding of the nature of apology as a remedy compounds the experience of inequality rather than leading to a just resolution of the matter. In the instant case, Justice Whealy expressed regret and stated that it was not his intention to discriminate. In fact, an apology in the context of remediation for discrimination has specific elements which the Canadian Judicial Council would do well to enforce. At the level of the individual statement the statement should:
(a) ensure that the apology reflects a clear understanding of the nature of the harm from the perspective of the complainant. It is this acknowledgment that is the cornerstone of the apologys validity;
(b) contain an admission of responsibility without subsequent statements which erode the acceptance of accountability.
Apologies which relate to judicial conduct should also reflect an awareness of the need for meaningful change of the institutional culture which lead to the initial wrong. This may mean that the apology from the judge directed to the complainant may need to be accompanied by a companion letter from the Canadian Judicial Council, itself. This has been characterized by Eric Yamamoto as the need for (a) acknowledgment, (b) affirmative efforts, (c) material change and (d) reframing. It is the last three elements that give value to the apology. It is the responsibility of the Canadian Judicial Council and the respective administrative judge responsible for that court (where the complaint arose) to ensure that the apology is not simply a rhetorical flourish to remove an awkward matter from public scrutiny. Ultimately, accepting this responsibility engenders public confidence and trust that judges can indeed judge themselves. It is the capacity to hold their colleagues accountable and to commit to meaningful change to preclude the recurrence of situations such as that faced by Mr. Taylor that would constitute a just outcome.
While the purpose of this impact study remains to identify better possible remedies for section 15 Charter violations, the Canadian Judicial Council has had a few cases that merit some attention. Three noteworthy cases explain why the Canadian Judicial Council needs to review the manner in which it handles complaints of judicial misconduct, especially when this misconduct involves Charter rights violations.
In the two Taylor decisions, Judge Whealy expressed his regret for excluding Mr. Michael Taylor, who was expressing his freedom of religion by wearing a woolly knit headdresses, from his courtroom. In this case, however, the judges apology letter only became public because an independent inquiry committee investigating him made it public. Furthermore, the apology was not addressed to the complainant. It does not have, therefore, any general educational value and cannot be said to serve as a deterrent. He also claimed in his letter, reproduced below, that he never intended to discriminate even though that is, of course, irrelevant when considering remedies for section 15 violations under the Charter. The reference to "I did not intend" in Judge Whealys letter is simply not consistent with Charter obligations contained in section 15:
[Letterhead of the Honourable Justice Whealy]
November 5, 1998
Chief Justice McEahern
Chair-Judicial Conduct Committee
Canadian Judicial Council
Place de Ville B
112 rue Kent Street
Ottawa, Ontario K1A 0W8
Dear Chief Justice:
Re: Your file 110
In December 1993, at pre-trial hearings, I excluded Mr. Taylor, and several others spectators from the courtroom because they refused to remove their hats. Most were wearing wooly knitted beret-style hats coloured gold, red and green which are the national colours of Jamaica. Mr. Taylor was wearing a fez-like hat. There were other male spectators who wore no hats.
This was the second day of the hearing and the second day of this disrespect and deliberate misbehaviour occurred. Mr. Taylor was not present, as I recall it, on the first day. Given the potential for disruption of the hearings, I decided order in the court was a priority.
In October, 1998, the Court of Appeal for Ontario dealt with an appeal by the accused, Mr. Laws. One of the grounds of appeal was the fact that Mr. Taylor had been excluded from the courtroom during his trial. The Court ordered a new trial on other grounds. Accepting as I must the decision of the Court of Appeal, I was in error in excluding Mr. Taylor.
The Court of appeal in ordering a new trial on other grounds had this to say about the exclusion of Mr. Taylor:
"In our view the rulings by the trial judge as to headdress did not deprive the appellant of a public trial. However, the trial judge by his rulings may have inadvertently created the impression of insensitivity as to the rights of minority groups."
I sincerely regret if the impression was created that I am insensitive to the rights of minority groups. That is not the case and was never my intent.
c.c.: Chief Justice Lesage
In another instance of judicial misconduct, Justice Frank Barakett of the Cour supérieure du Québec wrote to the Canadian Judicial Council and asked them to make his apology public. In other words, he consented to making his apology public on their website. This apology seemed to be directed more to aggrieved individuals than to the Aboriginal people at large to whom he made discriminatory remarks at trial. In terms of a remedy, the apology issued by Justice Barakett is slightly more suitable as a remedy than the one issued (but not to the public) by Justice Whealy because the intent is to make the apology public as opposed to be placed in a file of the complaint process.
The text of the Judges letter is reproduced in full:
[Letterhead of the Honourable Frank G. Barakett]
July 3, 2002
Ms. Jeannie Thomas
Canadian Judicial Council
Place de ville B
112 Kent Street
Ottawa, Ontario K1A 0W8
Dear Ms. Thomas:
In my letter to you of June, 2002, I stated that I am truly sorry and sincerely apologize for some of the comments made by me during the trial and in my written judgment in this matter. I also stated that I am willing to offer the complainants a public apology for those comments.
I am writing this letter in order to make that public apology.
I now realize that some of the comments made by me are disparaging to Ms. Isaac and Aboriginal people in general. I sincerely apologize to them for these comments and for the hurt they caused.
Although I reiterate that I do not feel any prejudice against Mr. Isaac or Aboriginal people, I acknowledge that the words used by me are unacceptable.
Would you please transmit the present letter to the Panel considering this matter and indicate to its members my consent to the letter being made public.
Very truly yours,
Frank Barakett, J.S.C.
c.c. The Honourable Lyse Lemieux, Chief Justice of the Superior Court
The Honourable Robert Pidgeon, Associate Chief Justice of the Superior Court.
The Taylor case at one level is essentially about the courtroom as a public space. However, it is much more than that. The case raises the following issues which beg a critical race analysis of not only the conduct of the individual judge but the role of the Canadian Judicial Council and other actors within the administration of justice:
1. The courtroom as a public space which is to be both transparent and accountable;
2. The centrality of access and accountability to the courtroom when a given case has direct implication or is of particular interest to them, in this case the African-Canadian community;
3. The intersection of culture, religion, and racialization in the judicial decision-making process;
4. White supremacist or Judeo-Christian norms in acknowledging, denying or defining what constitutes the boundaries of minority religious practice;
5. The interpretation of the rule of law and it relevance to courtroom process in the context of this case;
6. What is an effective understanding of courtroom decorum and dignity in a multicultural context;
7. The role of the provincial and federal human rights commissions in monitoring courtroom processes which relate to non-parties to the case at issue;
8. The appropriateness of requiring a member of the public not a party to the matter to meet the determining requirement that (i) counsel for the accused must incorporate discussion of judicial conduct into its appeal and (ii) that the appellate body must comment negatively on said conduct before the Canadian Judicial Council will engage on the matter and
9. How should the Canadian Judicial Council incorporate a diverse public interest in assessing complaints regarding judicial conduct.
This impact study does not set out to address all of these identified issues but is informed by an awareness of their contextual impact on the legal analysis which follows. The multiple failures of leadership in this case are what will lead to the following discussion that the ideal remedy may be a Charter remedy under section 24. The most troubling aspects of the refusal of jurisdiction by both levels of the human rights bodies are the contradictory messages they sent.
The Ontario Human Rights Commission failed to assume jurisdiction because they stated the case involved a federally appointed judge, while the Canadian Human Rights Commission stated that it lacked jurisdiction because the judge had absolute immunity for his conduct in this matter.
The latter reasoning is even more puzzling given its successful argument in Canada (House of Commons) v. Vaid, that the principles of parliamentary immunity could not shield the House from accountability to human rights legislation and principles. More specifically, the dignity interest was interrogated. There was no finding that the operation of the House would have been adversely affected. The Supreme Court of Canada was explicit in stating that:
"Parliamentary privilege is defined by the degree of autonomy necessary to perform Parliament's constitutional function," .... "In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly's work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency."
The Vaid decision raises the fundamental question of how the dignity of the courtroom was adversely affected by giving due respect to the religious practice of Mr. Taylor. The short answer is that accommodation of Mr. Taylors request would not have harmed the autonomy of the court or lowered the dignity in the courtroom. In fact, the dignity interest which was impaired was that of Mr. Taylor. Again, the court inverted the well-established principles of the Supreme Court of Canada that it is the dignity of the human rights/Charter complainant that are to be paramount.
The Canadian Judicial Councils response and reasoning throughout the process demonstrates a failure to assume leadership in the face of inappropriate conduct. Its initial reluctance and subsequent analysis demonstrates a lack of understanding of the way in which institutional racism informed not only Justice Whealys initial decision but its own subsequent behaviors. The construction of autonomy and dignity invoked and part of the common sense could be said to be grounded in an uncritical assertion of the rule of law. It is the rule of law and the need for equality of treatment before the courts without favor which is so fiercely guarded by the courts. More particularly,
"[F]actors that look like structural threats to judicial independence from the positive perspective can be equally explicable as structural protections for other values that an unqualified embrace of judicial independence undervalues."
The initial reasoning of Justice Whealy was essentially based on the script endemic to the culture of many courts. There was no intention to discrimination by Justice Whealy but that is not the issue. His reasoning is based on a simple application of the principle that justice is rendered by same treatment. An approach that is wholly rejected by any analysis based on substantive equality. In this context, the wearing of hats by men in the courtroom is seen as an act of disrespect. The judge, in his wisdom, has an awareness that not all hats would be disrespectful but found that Mr. Taylors garment did not confirm to what he viewed would have been appropriate religious exceptions. It is not necessary that every judge retain knowledge of the religious practices of diverse faiths. However, any decision which is rendered should take into consideration Canadas multicultural realities and the values which underlie the Charter. Part of that reality includes the religious practices of the African-Canadian community in its diversity. African-American (Canadian) Islam is one of the most rapidly expanding religions in the United States but it is not well understood. In this context, ignorance by the law is no excuse.
Furthermore, the Supreme Court of Canada has clearly expressed that sincerely held beliefs do not require uniformity within the religious community nor should they be unduly restricted by another on the basis of convenience. The reasoning that was applied to the condominium corporation in the case of Syndicat Northcrest v. Amselem if applied in the instant case would better uphold the dignity interest of Mr. Taylor. The Court said:
"freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials."
Impartial assessment in this context with its underlying goal of universality does not serve the other goals on inclusivity and respect for difference. The question of
" who judges are, and with whom they imagine themselves to be in conversation as they make their judgments. Whom do they imagine persuading and on whom do they make claims of agreement?"
should be the starting point for any analysis by the Canadian Judicial Council of circumstances such as those in the instant case.
Canadian Judicial Council, Ethical Principles for Judges (1998).
Rapport annuel, Conseil de la Magistrature du Quebéc (2000-2001).
Martin Friedland, A Place Apart: Judicial Independence And Accountability in Canada (1995).
Dale Gibson, The Law of the Charter: General Principles (1986).
Peter W. Hogg, Constitutional Law of Canada (loose-leaf, updated to December 2001).
Pamela S. Karlan, "Two Concepts of Judicial Independence," (1999) 72 S. Cal. L. Rev. 535.
Ian F. Haney Lopez, "Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination," (2000) 109 Yale L.J. 1717.
Aminah Beverly McCloud. African American Islam (Routledge: New York, 1995).
Jennifer Nedelsky, "Embodied Diversity and the Challenges to Law," (1997) 42 McGill. L.J. 91
James W. St. G. Walker, Race, Rights and the Law in the Supreme Court of Canada (1997).
Eric Yamamoto, "Race Apologies," (1997) 1 J. Gender Race & Justice 47.
Canada (Director of Investigation and Research) v. Southam Inc.  1 S.C.R. 748
Canada (House of Commons) v. Vaid,  208 D.L.R. (4th) 749.
Canada (House of Commons) v. Vaid,  S.C.J. No. 28.
Guimond v. Quebec (Attorney General)  3 S.C.R. 347.
Michaud v. Quebec (Attorney General)  3 S.C.R. 3.
Moreau Bérubé v. New Brunswick (Judicial Council),  S.C.C. 11 Docket no. 28206.
Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982, 1004-5.
R v. 974649 Ontario Inc., 2001 SCC 81.
R. v. Mills,  1 S.C.R. 863.
R. v. Tran,  2 S.C.R. 951.
Ruffo v. Conseil de la magistrature et al., 4 S.C.R. 309.
Syndicat Northcrest v. Anselem,  2 S.C.R. 551.
Taylor v. Canada (Attorney General) (C.A.), 1555 D.L.R. (4th) 740 (Fed. T.D.).
Taylor v. Canada (Attorney General) (C.A.),  3 F.C. 298.
U.E.S., Local 298 v. Bibeault,  2 S.C.R. 1048.
Provincial Court Act, C.C.S.M. c. 275, paragraph 39 [Manitoba Provincial Court Act].
The Provincial Court Act, Chapter P-30.11 of the Statutes of Saskatchewan (1998), [Saskatchewan Provincial Court Act].
An Act Respecting Judges of the Provincial Court, R.S., c 238; 1992, c. 16 [Nova Scotia Provincial Court Act].
Courts of Justices Act, [Ontario Provincial Court Act].
Alberta Judicature Act, Ch. J-2 [Alberta Judicature Act].
Queens Printer Act, R.S.P.E.I. (1988), cap. Q-1.
Provincial Court Act, [R.S.B.C. 1996] [British Columbia Provincial Court Act].
Provincial Court Act, R.S.N.B. (1973), c. P-21, s.6.11(4) [New Brunswick Provincial Court Act].
Provincial Court Act of Newfoundland (1991), CH. 15 [Provincial Court Act of Newfoundland].